Monday, 12 September 2016

Will UK citizens have to pay to visit the EU after Brexit?

Steve Peers

Following a Guardianarticle
on Saturday, and the Home Secretary’s confirmation on
Sunday, it’s clear that the EU is planning to institute some kind of Electronic
System of Travel Authorisation (ESTA) in future, which could well apply to UK
citizens visiting the EU after Brexit. I’ll examine the background, context and
consequences in this post.

Background

What is an ESTA?

First of all, let’s establish
what an ESTA is not. It’s not a means
of regulating longer-term migration as such, although there is an indirect link
between long-term migration rules and ESTA systems, as discussed below. Rather
it’s a means of regulating short-term visits for tourism or other reasons.

Nor is an ESTA a tourist visa. A lot of people have
confused it with one, perhaps because a Guardian
sub-editor initially put an inaccurate headline on the original story (I see
the online headline has since been corrected). A tourist visa is a bigger hassle
for visitors than an ESTA, since travellers must visit a consulate or pay an
agency to handle their application. It entails higher fees and a longer waiting
period, and probably a bigger risk of rejection.

During the Brexit referendum
campaign, the prospect of a visa regime between the UK and EU was not raised by
the Leave side generally. However, it was raised by a junior minister, Dominic
Raab, and at the time I trashed the idea here.
Since then, Theresa May has shown sufficient judgment to return Raab to the
backbenches, so hopefully we have heard the last of this idea for a while.

So what is an ESTA? It’s a way of gathering travellers’ information
in advance of travel, usually for citizens of countries subject to a visa
waiver, for instance the USA and Japan. In fact, the best-known example of an
ESTA is the American
version, although there are several other countries with one. If a traveller fails to complete an ESTA in
advance of travel, they will likely be denied boarding or admission at the
border. The US version includes a fee
for administration and tourism promotion. Usually the form is completed, and the
fee paid, online. It’s recommended to complete the ESTA form several days in
advance, although on my last trip to the USA, I did it just before dashing out
of the house to catch my plane. (I am not
suggesting this as best practice).

The EU context

The EU has been considering an
ESTA for a while. It would form part of the Schengen system of standardised
external border controls, which are paralleled by the abolition (in principle)
of internal border controls between Schengen States. The Schengen states
comprise all the remaining EU countries except Ireland – although Romania, Bulgaria,
Cyprus and Croatia do not fully participate yet – plus four non-EU Schengen
associates (Norway, Iceland, Switzerland and Liechtenstein).

A key feature of EU law in this
area is that the Schengen system interacts with EU free movement law. So
because the UK and Ireland have signed up to the free movement of EU citizens
as EU Member States, their citizens are fast-tracked across the Schengen
external borders. The same is true of the Schengen associates, because they
have all signed up to free movement of their citizens with the EU as well.

Other non-EU citizens are subject
to more intensive checks at the Schengen external border, as set out in the Schengen
Borders Code. There’s a simple reason for this: they don’t have an
underlying right to stay in the country, whereas citizens of EU Member States
and the Schengen associates do – subject to exceptions. There are also
distinctions between non-EU countries: some (like the US or Canada) have a visa
waiver from the Schengen countries, while others (like India and China) don’t.

An ESTA was first discussed in a
Commission discussion paper back
in 2008. This was followed up by a very
detailed study in 2011 which recommended against the idea, after which the
Commission dismissed
it. In 2013, the Commission decided
instead to propose an entry-exit
system, which would record the movements of non-EU citizens (besides the
Schengen associates) into and out of the Schengen external borders. Discussions
on that proposal moved slowly, and the Commission proposed a new
version of it in spring 2016. The intention is to agree on this system by
the end of the year, although it will take several years afterward to get the
system up and running in practice.

At the same time, the Commission
revived talk of a possible EU ESTA, in a discussion
paper on EU information systems. This excited many Member States, as can be
seen by a Dutch EU Council Presidency paper
published in the spring, which argued that the system could be a quid pro quo for visa waivers with
countries like Ukraine and Turkey. Now the idea is on the agenda for the summit
of the ‘EU27’ (ie the EU without the UK) to be held this week. It is being
pushed by France
and Germany in particular. Surely only a cynic would link this to the
upcoming elections in those countries…

Consequences

Like the entry-exit system, an EU
ESTA would take some time to set up. The details of how it would work would
remain to be determined: the Commission is due to make a proposal this autumn,
which would then be agreed by the Council (only Schengen States get a vote, so
not the UK) and the European Parliament. So it might not follow the US model exactly,
in terms of fees or the link to the broader border control system, or the
two-year period of validity.

For one thing, some of the EU documents
suggest an EU ESTA will apply at external land borders, whereas the US system
does not. Also, some EU papers suggest an ESTA will be used as a method of
screening people and denying them entry in advance, while others refer to it simply
as generating information for border guards to use to speed up their work. It’s
not clear whether an ESTA would apply to those UK citizens who live in the EU
already, if they (for instance) visited the UK and then returned to France.

But it does seem very likely that
it will apply to all non-EU countries which don’t have a treaty on free
movement of citizens with the EU. This would follow the existing model of the
Schengen Borders Code, the Schengen Information System (which includes data on
non-EU citizens to be refused entry) and the proposed entry-exit system. It’s
simply common sense: fast-track entry at the border for those who are not
subject in principle to immigration controls, but scrutiny at the border (or in
advance of it) for those who are.

It’s been suggested that
the application of an EU ESTA to the UK would be an act of ‘spite’. This is
simply ridiculous. If a country leaves the EU, it leaves behind both the pros
and cons of membership. In short: divorce doesn't come with bed privileges.

Many on the Leave side argued that the UK should leave
the EU and then stop applying free movement law, so that it could exercise more
control over EU citizens at the border. Applying an EU ESTA to UK citizens would
just be exactly the same principle in reverse. Equally UK citizens would no
longer be fast-tracked at Schengen external borders, would be subject to the EU
entry-exit system and (for a few) would be listed in the Schengen Information System
as people to be denied entry into any Schengen State. This isn’t ‘scaremongering’:
it’s simply a description of existing and proposed EU law.

So will the UK be subject to an
EU ESTA after Brexit? The obvious way to avoid it (and the other forms of
stepped-up border control) would be to conclude a deal on free movement of
persons with the EU (this need not mean joining Schengen). Arguably even a free movement deal with derogations – for instance,
limiting the numbers of EU citizens who can work in the UK in some way – could justify
an exemption from stepped-up border controls, as long as those UK controls are
not applied at the border. I can foresee the counter-argument that ‘the EU will
never negotiate an exception to free movement of people’; but has it occurred
to anyone that this might simply be a negotiating position?

If an EU ESTA does end up being
applied to UK citizens, the UK could reciprocate with a system of its own,
applied to EU visitors. But this doesn’t rule out some form of deal on
immigration flows between the UK and the EU, which could be agreed in return
for continued UK participation in the single market. The mere existence of a UK ESTA – perhaps accompanied
by some other form of immigration safeguard on EU citizens – might arguably go
some way to satisfying those who want additional border controls. It could be
accompanied by further mutual sharing of data
on serious convicted criminals, for use in the ESTA process. Latvia’s daft
decision to release a convicted murderer after only a few years in prison
should not have had tragic
consequences in the UK, or any other Member State.

3 comments:

Already the February renegotiation had brutal restrictions on free movement (non-EU family members), so I wouldn't count on the EU respecting those. Not in the current climate where every country wants to restrict immigration of non-Europeans. Goodbye Europe!

Pre-Brexit the EU ESTA sounded reasonable. A further factor is that it could earn the EU (not member states) €500m pa on some estimates and go some way to meet the demands for a greater direct EU tax take. With EU27 losing at least some of the UK's current contribution post 2020 the money factor adds to the antiterrorism/crime rationale. In negotiations the UK will be forced to reciprocate, which could lead to a deal or the use of the UK ESTA and the EU ESTA. As well as "Brits with preBrexit residence rights in EU27" and vice versa there will be problems at the UK/Ireland, Spain/Gibraltar borders (not sure about the Channel Islands)